AEDH

Is the Schengen system in crisis?

This post is also available in: frFrançais (French)

30 September 2016 – During this year’s debates on the revision of Schengen, the LIBE Committee of the European Parliament commissioned a study to a research team, that has just been published under the title « Internal border controls in the Schengen area is Schengen crisis-proof ? ». 

The aim was to analyse the state of governance of the system, with several member States reintroducing internal border controls, and the possible need to reform it.

The publication begins with recalling the context and the way in which the reform of Schengen governance was very little pushed in 2013. The European Commission can assess member States compliance with the Schengen Border Code (SBC) mechanism on the basis of different criteria of proportionality and of the impact of internal controls reintroduction. The SBC procedures, defined under articles 26 – 29, have been put to the test by the 2015/2016 “refugee crisis”. Five member States have reintroduced their internal border controls (Austria, Germany, Denmark, Norway and Sweden), justifying these derogations by the risk of terrorism, the mass refugees movement and the deficiencies of Greece(1). Furthermore, with the implementation of the EU-Turkey agreement, member Stats protracted their internal border controls with the reason of the “fear of secondary movements” or the lack of clarity on the deal.

The analysis concludes that no legislative reform is necessary, with member States having respected Schengen rules while reintroducing internal border checks. Nevertheless, the study highlights that, if the Schengen system is formally respected, the justifications given by the member States while implementing the SBC mechanism are not sufficient and disproportionate. At the lack of substantial details has to be added the absence of transparency of member States when controlling people at the borders, by using police checks for preventing “irregular” immigration. Thus, the study suggests that the Commission better verifies the compliance of the justifications given by the States and ensures a higher degree of transparency and a better communication to the public.

The analysis also considers the need to a legal clarification of the possibility to use police checks at borders, as well as a better participation of civil society, allowing an independent and substantiated assessment of member States’ actions on the ground.

The authors express their concerns about the respect of rules in the field of asylum too. They propose to elaborate, in consultation with the HCR, guidelines on an ad hoc application of article 31 of the Geneva Convention – which concerns refugees in an irregular situation in the reception country – so allowing the Commission to commence infringement proceedings against those States that started criminal proceedings for irregular entry onto their territory, whether it is from the outside of the Schengen area or from the inside. As such, the study evokes the perspective to endow the EU with an “asylum evaluation mechanism” similar to the one in Schengen, based on article 70 of the TFEU.

 

(1) To remind, see: The Schengen zone is mishandled, AEDH Newsletter n° 282, January 2016 – http://www.aedh.eu/2016-It-seems-that-the-European.html

 

Compte AEDH